CLEMENCY AND CORRECTIVE ACTION ON REVIEW

LEARNING OBJECTIVES: Define clemency and corrective action. Explain who has the authority to take action. Discuss the various forms of clemency and corrective action.

Clemency is a reduction in the severity of punishment and is at the discretion of the officer authorized to take such action. Corrective action is a reduction in the severity of punishment or other action taken by proper authority to correct some defect in the nonjudicial punishment proceeding and to offset the adverse impact of the error on the accused.

AUTHORITY TO ACT

After the imposition of nonjudicial punishment, the following officials have authority to take clemency action or corrective action:

The officer who initially imposed the NJP (this authority is inherent in the office, not the person holding the office).

The successor in command to the officer who imposed the punishment.

The superior authority to whom an appeal from the punishment would be sent, whether or not such an appeal has been made.

The CO or OIC of a unit, activity, or command that the accused is properly transferred to after the imposition of punishment by the first commander.

The successor in command of the latter.

For more information on authority to act see part V, par. 6a, MCM, 1984, and section 0118 of the JAG Manual.

FORMS OF ACTION

The forms of action that can be taken, either as clemency or corrective action, consist of setting aside, remission, mitigation, and suspension.

Setting Aside

This power has the effect of voiding the punishment and restoring the rights, privileges, and property lost to the accused by virtue of the punishment imposed. This action should be reserved for compelling circumstances where the commander feels a clear injustice has occurred. This normally means that the commander believes the punishment of the accused was clearly a mistake.

If the punishment has been executed, executive action to set it aside should be taken within a reasonable time-normally within 4 months of its execution. The CO who wishes to reinstate an individual reduced in rate at NJP is not bound by the provisions of MILPERSMAN, Article 2230200, limiting advancement to a rate formerly held only after a minimum of 12 months' observation of performance. Such action can be taken with respect to the whole or a part of the punishment imposed. All entries pertaining to the punishment set aside are removed from the service record of the accused, Refer to MILPERSMAN, Article 5030500.

According to MILPERSMAN, Article 5040110, once a punishment is set aside, the CO prepares and personally signs (no By direction signature is allowed) a letter of notification as shown in figure 6-8. This letter is sent to the Chief of Naval Personnel (PERS-82 for officers) (PERS-83 for enlisted) to make sure all local records are purged of any notation of the NJP and its residual effects. PERS-82 or 83 will notify the CO and the member when the action has been completed.

Remission

This action also relates to the unexecuted portions of punishment; that is, those parts that have not been completed. This action relieves the accused from having to complete his or her punishment, though the accused may have partially completed it. Rights, privileges, and property lost by virtue of executed portions of punishment are not restored, nor is the punishment voided as in the case when it is set aside. The expiration of the current enlistment or term of service of the service member automatically remits any unexecuted punishment imposed under Article 15.

Mitigation

This action also relates to the unexecuted portions of punishment. Mitigation of punishment is a reduction in the quality or quantity of the punishment imposed. Quality means type of punishment while quantity means how much. In no event may the punishment be increased.

QUALITY.- Without any change in quantity, the following quality reductions may be taken:

l Arrest in quarters to restriction.

l Confinement on bread and water or diminished rations to correctional custody

l Correctional custody or confinement on bread and water or diminished rations to extra duties or restriction or both (to run concurrently)

l Extra duties to restriction

QUANTITY.- The length of deprivation of liberty or the amount of forfeiture or other money punishment also can be reduced and mitigated without any change in the quality (type) of punishment.

REDUCTION IN GRADE.- Reduction in grade, though executed, may be mitigated to forfeiture of pay. The amount of forfeiture can be no greater than that which could have been imposed by the mitigating commander had he or she initially imposed punishment. This type of mitigation must be completed within 4 months after the date of execution.

In mitigating nonjudicial punishment, neither the quality nor the quantity of the punishment may be increased. Therefore, it would not be possible to mitigate 3 days' confinement on bread and water to 4 days' restriction or to mitigate 60 days' restriction to 1 day of confinement on bread and water.

Suspension

Suspension is an action to withhold the execution of punishment for a time pending the good behavior of the accused. Only later misconduct during the probationary period will cause the suspension to be vacated (revoked) and this misconduct must be an offense under the UCMJ. For more information refer to the JAGMAN.

Figure 6-8.-Sample letter of notification.